Presented by Joanna Bergmann, Arthur Caplan, and Nadia Sawicki
For the bioethics community, novel reproductive technologies challenge traditional understandings of parenthood. Traditionally, society and the law have taken the view that paternal responsibilities arise from biology. Hence, until recently, biological paternity was a necessary uncertainty. Accordingly, this view was translated into a presumptive social model under which a husband was deemed the legal father of any child born within his marriage to the child's mother. In addition to settling the issue of paternity under the law, this model operated to protect children from the economic disadvantages and social stigma of illegitimacy. Today, however, non-traditional family structures such as co-habitation, adoption, single parent households, and same-sex partnership, as well as novel assisted reproductive technologies such as surrogate parenthood, gamete harvesting, and reproductive organ transplants are calling into question the assumptions grounding this view of paternity. Surrogate motherhood, ovarian transplants, post-mortem sperm donation all lead to the same initial questions: What is a mother? What is a father? How do these parental rights and responsibilities arise?
The presenters considered these basic questions, and further, how should society and the law respond when, for want of genetic ties, the father of a child seeks to relinquish his parental rights and responsibilities? How should policy makers, legislators and judges negotiate and reconcile the conflicting values and stakeholder interests which lie at the heart of such disputes? There is surprisingly little consistency in the law. Past cases reveal a confusing series of legislative and judicial choices which, when deployed, do not always yield ethically acceptable outcomes. Existing models by which society and the law recognize paternity in order to identify the chief social, familial and individual values grounding paternity's establishment include marriage or presuming, intent-based, and genetic. Each model offers key values which may be promoted or are at stake in paternity's disestablishment. Those values include but are not limited to: medical, social and legal interests of the child, legal and biological parents; administrative efficiency; preserving and promoting certain views of the family; discouraging premarital sex; and reproductive responsibility.
Two criticisms that have been leveled against existing paternity disestablishment laws are: they are parent- or father-centered as opposed to child-centered; and they unjustifiably elevate genetic ties and, hence, genetic paternity, over and above other forms of and values attaching to paternity. Paternity disestablishment should reflect values that are not at odds with those in place in paternity establishment. While it is hard to make overarching statements without specific cases, it is appropriate to explore the issue from a utilitarian viewpoint how can we make as many people as happy as possible or how can we ensure that the fewest people are harmed.
Bergmann and her colleagues proposed three value-based models as potential frameworks for the analysis and resolution of paternity disestablishment contests. These principles could be applied to weigh the disparate interests to influence policy. Beneficence or nonmaleficence considers what policy can bring the most benefit to most people. Justice as fairness considers both substantive and procedural fairness. People similarly situated should be treated similarly. If paternity establishment is based on genetic identity, disestablishment policy should do the same. Are decisions about whether or not to disestablish substantively fair, particularly for the child? Autonomy and privacy is the final pair of critical values. Parents are autonomous beings but disestablishment arises because parents are not always exercising their autonomy and responsibility in a logical fashion. An option is to require genetic testing at birth so parents have baseline information from which to make decisions. However, familial privacy is an equally critical value in society. Mandatory genetic testing may not serve the societal interest of limiting government intervention to that necessary. Policy that incorporates a values-driven model of paternity disestablishment is comprehensive in scope and ethical in process and product.